Legal Blog

The Weekly Scenario from Steve Shane – 10.7.13

Question:  My primary residence is in Florida and qualifies as a Florida homestead.  Are there any restrictions on how I leave this property after my death? Answer:  Florida law prohibits the devise of a homestead if the owner is survived by a minor child/ren.  Thus a Florida homesteader who has at least one minor child is restricted in his ability to transfer the homestead upon death or during life. An improper devise of a Florida homestead can not only frustrate a person’s testamentary desires, but would result in a devise in accordance with the intestacy laws of Florida (in such case typically the spouse would have a life interest with the remainder passing to children).  This becomes even more complicating in trying to achieve a client’s estate planning objectives (e.g., funding a Marital Trust, Credit Shelter Trust, etc.). In certain circumstances, however, the transfer of a Florida homestead to an irrevocable trust is not considered a devise and the disposition of the homestead will be directed by the terms of the trust (thus overriding state law).  However, one disadvantage to doing so is that the homestead may not qualify for the homestead property tax exemption or creditor protections granted by state law. Comments:  For clients who own a Florida property qualifying as a Florida homestead, it will be important to review the effect of the property’s disposition under Florida law. Steven E. Shane Principal Offit│Kurman Attorneys At Law 301.575.0313 Washington 443.738.1513 Baltimore 410.218.9339 Mobile 301.575.0335 Facsimile Please note the above material discussed is intended to provide only general information. Do not, under any circumstances, solely rely on this information as legal advice. Legal matters are often complicated. For assistance with your specific legal problem or inquiry please contact me directly.